We mustn’t turn historians into informers

We mustn’t turn historians into informers
Ben MacintyreSunday Times
May 2 2014

The enforced handover of taped evidence by paramilitaries from the Troubles will have a chilling effect on research

Three years after the Good Friday agreement a group of historians and researchers affiliated to Boston College in Massachusetts set out to gather an oral history of the Troubles by interviewing paramilitaries on both sides of the conflict.

The rules were simple: IRA and loyalist veterans could speak freely on the strict understanding that the tapes would not be released until after their deaths.

Over the next five years the researchers, including a former IRA prisoner, gathered a remarkable trove of information about the last 40 years of violence in Northern Ireland. A total of 176 interviews were recorded with 46 people who, believing they were speaking to posterity, revealed secrets they would never have divulged otherwise. The tapes were securely locked away in the Burns Library at Boston College.

Brendan Hughes, the former IRA commander who was one of the key participants in the project, died in 2008. It subsequently emerged that Hughes’s taped interviews included the allegation that Gerry Adams had directly ordered the “disappearance” of Jean McConville, the widow and mother of ten, kidnapped and murdered by the IRA in 1972.

The IRA veteran Dolours Price, the Old Bailey bomber who died last year, claimed she had made similar allegations about Adams’s involvement in interviews for the “Belfast Project”.

The Police Service of Northern Ireland, scenting a breakthrough in the most chilling of “cold cases”, launched a legal bid in the US to obtain the tapes, citing the US-UK mutual legal assistance treaty.

After a protracted two-year legal battle that reached all the way to the US Supreme Court, Boston College was eventually forced to surrender portions of the relevant tapes. Adams, who has always denied any involvement in the murder of McConville, was arrested on Wednesday night.

At stake here are two different, but complementary principles of justice: a legal accounting set against the search for a wider historical truth; the protection of academic freedom versus the state’s duty to solve a heinous crime.

The murder of Jean McConville was savage in the extreme. There is no evidence to support IRA suspicions that she was an informer; her crime was to help an injured British soldier. She was torn from her family, executed with a shot to the head and buried on a remote beach. In a particularly vile twist, her children were told that she had abandoned them.

Anything that brings the killers to account should be applauded, but the way the taped evidence has been obtained in this case comes with a heavy cost. The Supreme Court was given the task of balancing the protection of historical research against the interests of the US government in upholding treaty obligations to Britain. It ruled that criminal investigation takes precedence over academic study.

The gathering of confidential oral history is central to any process of truth and reconciliation. As the South African experience shows, finding out what happened, based on the honest, unforced testimony of those involved, is as much a part of the healing process as punishment of the guilty.

Source protection is not just a central pillar of journalism, but vital to any sensitive historical inquiry. My own book research into intelligence and espionage history would be impossible without being able to make, and keep, a promise to my sources of permanent anonymity. The researchers on the Belfast Project set out, in good faith, to uncover history but have now been turned into police informers, arguably putting both interviewers and interviewees at risk.

The Belfast Project was intended as an important addition to the peace process, to obtain as full an account of what happened as possible. Diverting the project from the library to the courtroom has already had a chilling effect on historical research: others, including former members of the RUC, who were once prepared to come forward with their own accounts have backed off since the US court ruling.

Retrieving the memories of all sides in the conflict is vital to understanding, demystifying and ultimately defusing an explosive past. If the witnesses to grim events fear prosecution for telling the truth in confidence, then that history cannot move on.

There is no certainty that the Boston tapes will be admissible in court: the interviewees were not under oath and were not given any legal warning about self-incrimination. Neither Hughes nor Price can be cross-examined, since both are dead; Price’s testimony is particularly open to challenge since she was on day release from a psychiatric hospital when she was interviewed.

The archived interviews in Boston are believed to contain evidence relating to at least 16 more abductions and killings; they may also contain testimony about atrocities committed by loyalists. If the British courts demand an accounting from one side, will they also pursue the other?

British police have been hunting the killers of Jean McConville for 42 years without success. The breakthrough came not from dogged police work but by using the US courts to extract bona fide historical research obtained in good faith.

As one of the Belfast Project researchers put it: “Journalists, academics and historians need protection if they are to gain the necessary information which offers a valuable insight into the past.”

The McConville family deserves justice; but historians who seek to explore the past also have a right to uncover the truth.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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